IMPORTANT POINT
When accused pressed the neck of deceased as deceased failed to repay the borrowed amount of Rs. 100/- and post mortem report showed that deceased was frail and slight pressure on his neck must have resulted in his death would bring offence u/s 304 part II IPC and not u/s 302 IPC.

Headnote:(i) Indian Penal Code, 1860-Section 302/34-Respondent two accused came to house of deceased at 10 p.m. and accused No.1 demanded Rs.100/- which deceased had borrowed-Respondent accused No. 1 assaulted deceased and strangulated his neck where as A2 sat on legs of deceased-PW 2 and PW3 claimed to be eye witnesses-Conviction recorded by trial Court was set aside by High Court holding presence of PW 2 and PW 3 doubtful and prosecution story improbable-State appeal-PW2 and PW3 gave a consistent evidence-High Court erred in fixing time of murder by assuming that deceased must have taken food at 10 a.m. when semi digested food was found during post mortem-Delay in lodging FIR was duly explained-Merely because PW2 and PW3 had not intervened would not be ground to hold their presence doubtful-Involvement of A2 was however doubtful as act of assault was attributed to him and he could not be said to have had common intention-Conviction of A2 was unsustainable. (Paras 6 to 9)
(ii) Indian Penal Code, 1860-Section 302-Accused strangulated deceased when deceased failed to return borrowed money Rs. 100/-Deceased was frail and slight pressure on his neck must have resulted in his death-Accused could not be said to have had intention to cause death-Conviction was liable to be converted to u/s 304 part II and sentence of six years imprisonment awarded. (Para 10)

ORDER

This is an appeal preferred by the State of Punjab against the acquittal of two accused persons namely Joginder Singh and Nachhattar Singh. These two accused persons were tried by the Sessions Judge, Ferozepur, for having caused death of Makhan Singh. The Sessions Judge found both of them guilty of the offence punishable under Section 302/34 IPC and sentenced them to undergo imprisonment for life. Aggrieved by the same they filed appeal before the High Court and the High Court was pleased to find them not guilty and acquitted them of the charges framed against them under Section 302 IPC read with Section 34 IPC. The acquittal of these accused is challenged before us.

2. The incident happened at about 10 p.m. on 20-4-1992. The deceased Makhan Singh was the son of PW-2 Gurdial Singh. On the date of incident Makhan Singh and his brother Amrik Singh returned to their house after the days work. They were about to take meals when accused Joginder Singh and Nachhattar Singh came there and demanded hundred rupees from Makhan Singh which he had borrowed from accused Joginder Singh. Makhan Singh was not in a position to pay Rs. 100/-, but Joginder Singh insisted that money should be paid immediately and he started abusing Makhan Singh and others. Joginder Singh then caught hold of him by tuft and dragged him towards his house. PW-2 Gurdial Singh and his son Amrik Singh followed and Gurdial Singh implored not to kill his son. Joginder Singh kicked Makhan Singh on his chest and pressed his neck with his hands. According to the prosecution Nachhattar Singh sat on the legs of Makhan Singh. Hearing alarm raised by PW-2 Gurdial Singh, three other persons came to the scene of occurrence. Accused Joginder Singh and Nachhattar Singh ran away from the place. Makhan Singh who was lying on the floor unconsciously was brought to the house of PW-2. An attempt was made to pour water in his mouth but he died immediately. PW-2 contacted Dharam Singh, Sarpanch, of the village in the night itself and as it was the time of disturbed conditions in that area he could not go to the police station to lodge FIR and on the next day at 7.20 a.m. he gave first information statement which was recorded by the ASI.

3. PW-1 to PW-6 were examined on the side of the prosecution. PW-1 who conducted the post-mortem examination found as many as nine injuries on the body of the deceased. Injury nos. 1 to 8 are abrasions on the various parts of the body. Injury No. 9 is abrasion 4.5 cm. x 2.5 cm on the joint aspect of neck and its lower point. The post mortem examination revealed that as a result of the neck injury, Hyoid bone was fractured and on dissection of the neck, there was subcutaneous haematoma below the injury No.9.

4. The accused persons were questioned under Section 313 Cr.P.C. Accused Joginder Singh stated that he was not present at the time of the incident. Accused Nachhattar Singh stated that on the date of incident when he came to his house at about 11 p.m. after the harvest work was over he saw his wife being assaulted by deceased Makhan Singh and in order to save his wife he grappled with Makhan Singh and when Makhan Singh tried to strangulate him, he overpowered him and strangulated deceased Makhan Singh. The Sessions Judge accepted the prosecution evidence and relied on the evidence tendered by the two witnesses namely PW-2 Gurdial Singh and PW-3 Gurdev Singh and found these accused persons guilty.

5. The High Court reversed the finding of the Sessions Court. According to the High Court the prosecution story was highly improbable and it is stated that if five persons including PWs 2 and 3 were present at the time of incident they could have very well intervened and saved the deceased Makhan Singh from the clutches of Joginder Singh and Nachhattar Singh. On this point the prosecution story was disbelieved by the High Court. Yet another reason given by the High Court is that in the post mortem report it is stated that there was partly digested food materia

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2003 Supreme(SC) 1060

IMPORTANT POINTWhen accused pressed the neck of deceased as deceased failed to repay the borrowed amount of Rs. 100/- and post mortem report showed that deceased was frail and slight pressure on his neck must have resulted in his death would bring offence u/s 304 part II IPC and not u/s 302 IPC.

IMPORTANT POINT
When accused pressed the neck of deceased as deceased failed to repay the borrowed amount of Rs. 100/- and post mortem report showed that deceased was frail and slight pressure on his neck must have resulted in his death would bring offence u/s 304 part II IPC and not u/s 302 IPC.